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2011 DIGILAW 281 (CHH)

CHAMAR SINGH v. STATE OF C. G.

2011-08-10

R.N.CHANDRAKAR, T.P.SHARMA

body2011
JUDGMENT As per HOD 'ble Shri T.P. Sharma, J. :- 1. Challenge in this appeal is to the judgment of conviction & order of sentence dated 8.1.2001 passed by the Additional Sessions Judge, Korba, in Sessions Trial No.50/2000, whereby & where under learned Additional Sessions Judge after holding the appellants guilty for commission of culpable homicide amounting to murder of Amar Singh in sharing common intention convicted them under Section 302 read with Section 34 of the I.P.C. and sentenced to undergo imprisonment for life and fine of Rs.5000/-, in default of payment of fine to further undergo R.I. for six months. 2. Conviction is impugned on the ground that without there being any' iota of evidence, the trial Court has convicted and sentenced the appellants as aforementioned and thereby committed illegality. 3. As per case of the prosecution, on 8.10.1999 at about 8 a.m. Amar Singh went along with appellant Teejram to village Choribhata and consumed liquor, thereafter they went towards hill where the appellants assaulted Amar Singh by stick and fists and caused his death. Thereafter, they have thrown dead body in ditch full of water. Dead body of the deceased was found floating in ditch (dabra). Mehatar (PW-2) went to Police Station and lodged merg vide Ex.P/1. Investigating officer proceeded for scene of occurrence and after summoning the witnesses vide Ex.P/15 prepared inquest over dead body of the deceased vide Ex.P/9. Dead body was sent for autopsy to Primary Health Centre, Kartala vide Ex.P/16, where Dr.B.S.Narbadiya (PW-7) conducted autopsy vide Ex.P/5 and found following injuries : (i) Bruise over right knee of 2.5" x 8" (ii) Bruise over thumb of right leg of 314" x W'. (iii) Five abrasions over right thigh of 12" x W', W' x 1/12", 3" x 12", W' x 1/12" x 12" x 1/12". (iv) Lacerated wound over yd, 4th and 6th vertebra column of the back. 4. Cause of death was syncope. Spot map was prepared by investigating officer vide Exs.P/3 and P/7. On 15.11.1999 F.I.R. was recorded against unknown persons vide Ex.P/14. Panchnama was prepared by investigating officer vide Ex.PI2. During the course of investigation appellant Chamar Singh made disclosure statement of stick vide Ex.P/I0 on 17.11.1999 and same has been recovered at his instance vide Ex.PIl2. Appellant Ramayan Singh also made: disclosure statement of stick vide Ex.Plll and same has been recovered at his instance vide Ex.PIl3. Panchnama was prepared by investigating officer vide Ex.PI2. During the course of investigation appellant Chamar Singh made disclosure statement of stick vide Ex.P/I0 on 17.11.1999 and same has been recovered at his instance vide Ex.PIl2. Appellant Ramayan Singh also made: disclosure statement of stick vide Ex.Plll and same has been recovered at his instance vide Ex.PIl3. Viscera and clothes of the deceased were seized vide EX.P/17. Seized articles were sent for chemical examination. 5. Statement of the witnesses were recorded under Section 161 of the Cr.P.C. and after completion of investigation charge sheet was filed in the Court of Judicial Magistrate First Class, Korba, who in turn, committed the case to the Court of Sessions, Bilaspur, from where learned Additional Sessions Judge, Korba received the case on transfer for trial. 6. In order to prove the guilt of the accused/appellants, the prosecution has examined as many as twenty one witnesses. The accused/appellants were examined under Section 313 of the Cr.P.C., in which they denied the circumstances appearing against them and claimed innocence and false implication in crime in question. 7. After providing an opportunity of hearing to the parties, learned trial Court has convicted and sentenced the appellants as aforementioned. 8. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. 9. Learned counsel for the appellants vehemently argued that conviction is based on the evidence of alleged eyewitnesses Milapsingh (PW -1), Dhasiya (PW -8) and Pratap Singh (PW -12) whose statements under Section 161 of the Cr.P.C. have been recorded on 2.12.1999 after more than one month and twenty six days of the incident. They have not offered any explanation about delay in recording such statements or informing the police. Investigating officer has also not offered any explanation about such delay. Statements of alleged eyewitnesses recorded after more than one month and twenty six days without explanation is fatal to the prosecution and conviction cannot be based on aforesaid witnesses. 10. On the other hand, learned Panel Lawyer for the State/respondent supported the judgment impugned and argued that evidence of Milapsingh (PW1), Dhasiya (PW-8) and Pratap Singh (PW-12) inspires confidence and trustworthy and only on the ground that they have not offered any explanation their evidence cannot be discarded. 11. 10. On the other hand, learned Panel Lawyer for the State/respondent supported the judgment impugned and argued that evidence of Milapsingh (PW1), Dhasiya (PW-8) and Pratap Singh (PW-12) inspires confidence and trustworthy and only on the ground that they have not offered any explanation their evidence cannot be discarded. 11. In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution. 12. In the present case, homicidal death as a result of fatal injuries found over the body of deceased Amar Singh has not been substantially disputed on behalf of the appellants, even otherwise, it is established by the evidence of Dr.B.S.Narbadiya (PW-7) and autopsy report Ex.P/5. Death of the deceased was homicidal in nature. 13. As regards the complicity of the appellants in crime in question, conviction is substantially based on the evidence of alleged eyewitnesses Milapsingh (PW -1), Dhasiya (PW -8) and Pratap Singh. (PW -12), who have categorically deposed that at the time of incident they were collecting fuel wood and were present on hill side, they heard sound, then they went towards the place from where sound was coming they saw that Amar Singh was shouting and the appellants were assaulting him by stick and fists, he fell down on the floor and they fled from the spot. On second day dead body of Amar Singh• was found floating on the water. 14. Defence has cross-examined these witnesses at length. In their cross-examination they have deposed that they have seen the incident. They have admitted that they have not stated about the incident to any person. As per para 10 of evidence of Ganpat Singh (PW -11), he is the person who produced the aforesaid witnesses to Police Station on 2.12.99. All alleged eyewitnesses are residents of same village, they were not disclosed the incident of 8.1 0.1999 till 2.12.1999. Investigating officer S.P. Bhagat (PW -17) has recorded their statements who has admitted in para 10 of his evidence that he has recorded statements of aforesaid eyewitnesses on 2.12.1999. Delay in recording statements under Section 161 of the Cr.P.C. by itself is not sufficient for discarding/rejecting the evidence of eyewitnesses unless it is explained properly. 15. Investigating officer S.P. Bhagat (PW -17) has recorded their statements who has admitted in para 10 of his evidence that he has recorded statements of aforesaid eyewitnesses on 2.12.1999. Delay in recording statements under Section 161 of the Cr.P.C. by itself is not sufficient for discarding/rejecting the evidence of eyewitnesses unless it is explained properly. 15. While dealing with the question of evidentiary value of eyewitnesses whose statement recorded under Section 161 of the Cr.P.C. after considerable delay the Supreme Court in the matter of Banti alias Guddu Vs. State of Madhya Pradesh) has held that delay in recording statement of witness under Section 161 of the CrPC by itself is not sufficient to suspect prosecution version if the explanation offered for the delayed examination is plausible and acceptable and the court accepts the same as plausible, there is no reason to interfere with the conclusion. 16. While dealing with same question, the Supreme Court in the matter of Lalli alias Chiranjib Bhowmick son of Annada Chandra Bhowmick Vs. State of West Bengal has held that delay in recording statement of witness' under Section 161 of the CrPC of 56 days can be relied upon on clear, cogent and satisfactory explanation for the delay given by the prosecution. 17. While dealing with same question the Supreme Court in the matter of Dukhmochan Pandey and others Vs. State of Bihar has held that delay in recording statements of witnesses is not fatal only on the ground of delay in recording statement if it is properly explained. 18. While dealing with same question, the Supreme Court in the matter of Prithvi (Minor) Vs. Mam Raj and other has held that the statement of injured witness not in a position to talk recorded after considerable time is not fatal to the prosecution. 19. As held by the Supreme Court in the matters of Banti, Lalli, Dukhmochan & Prith (supra), delay in recording the statement of sole eye witness or eyewitness if explained properly and delay in recording statement of witnesses by itself is not fatal to the prosecution. 20. 19. As held by the Supreme Court in the matters of Banti, Lalli, Dukhmochan & Prith (supra), delay in recording the statement of sole eye witness or eyewitness if explained properly and delay in recording statement of witnesses by itself is not fatal to the prosecution. 20. In Rupchand Chindu Kathewar v. State of Maharashtra, the Supreme Court has held that lodging of FIR after considerable delay and statement of eyewitness recorded after a delay of about 36 hours by itself is not fatal to the prosecution, but there is a proviso to this broad principle;that the evidence read as a whole must inspire confidence. The Supreme Court has observed in para 9 of its judgment as follows: "It is also significant that the FIR was accordingly lodged after an inordinate delay at 4.00 p.m. on 14-5-1999. We are cognizant to the fact that. a mere delay in lodging the FIR would not be fatal to the prosecution story, but there is a proviso to this board principle, that the evidence read as a whole must inspire confidence. As already indicated above, PW 2 was the only eyewitness and his statement under Section 161 was recorded after a delay of about 36 hours. Moreover, we find his conduct to be wholly unnatural. His evidence must, therefore, be looked at with suspicion. We have, therefore, gone through the medical evidence to see if the prosecution story was in any manner corroborated as it is the case of the appellant's counsel that the murder was a blind one and the entire story had been concocted after the dead body had been recovered." 21. In the present case, Milapsingh (PW-l), Dhasiya (PW-8) and Pratap Singh (PW-12) have not offered any explanation relating to recording of statements after more than one month and• twenty six days. Even evidence of the prosecution witnesses does not reveal that how this fact that these witnesses have seen the incident came into knowledge of investigating officer. In the absence of aforesaid explanation, statements of the witnesses recorded after considerable time is not sufficient to rely upon. 22. While placing reliance upon the evidence of aforesaid witnesses, the trial Court has committed illegality. We are of the opinion that conviction and sentence of the appellants are not based on clinching, credible and reliable evidence. 23. Consequently, the appeal is allowed. 22. While placing reliance upon the evidence of aforesaid witnesses, the trial Court has committed illegality. We are of the opinion that conviction and sentence of the appellants are not based on clinching, credible and reliable evidence. 23. Consequently, the appeal is allowed. Conviction and sentence of the appellants under Section 302 read with Section 34 of the I.P.C. are hereby set aside. The appellants are on bail, they need not surrender before the Court. Appeal Allowed.